567 F.

2d 588
97 L.R.R.M. (BNA) 2119, 82 Lab.Cas. P 10,252

ST. VINCENT'S HOSPITAL, Petitioner,

v.
The NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 77-1027.

United States Court of Appeals,

Third Circuit.
Argued Oct. 6, 1977.
Decided Dec. 15, 1977.

John S. Irving, Gen. Counsel, Elliott Moore, Deputy Associate Gen.

Counsel, Paul J. Spielberg, Deputy Asst. Gen. Counsel, Patrick
Szymanski, N. L. R. B., Washington, D. C., for respondent.
Peter A. Somers, Lindabury, McCormick & Estabrook, P. A., Westfield,
N. J., for petitioner.
Richard L. Epstein, K. Bruce Stickler, Sonnenschein, Carlin, Nath &
Rosenthal, Chicago, Ill., for amicus curiae, American Hospital Ass'n.
Before GIBBONS and WEIS, Circuit Judges and STEEL, District Judge.*
OPINION OF THE COURT
WEIS, Circuit Judge.

When the National Labor Relations Act was extended to health care
institutions, one of the objectives was to avoid disruptions in patient care.
Diagnosing fragmentation of bargaining units as a potential obstruction to that
aim, congressional committees advised the National Labor Relations Board to
prevent proliferation. In this appeal, we agree with a hospital's contention that
the Board failed to heed that admonition. Accordingly, the Board's order will be
set aside and enforcement denied.
The NLRB certified as an appropriate bargaining unit a group of four boiler

operators employed by St. Vincent's Hospital in Montclair, New Jersey. After

the hospital refused to recognize the union, the Board issued an order directing
that collective bargaining take place.

The hospital has 112 beds and employs approximately 280 employees, 206 of
whom work full-time. In addition to the four boiler operators, the hospital has
three other employees in the maintenance department, 30 in housekeeping and
laundry, and 28 in the dietary department. There are 30 nurse's aides, 20
licensed practical nurses, and ten technicians in addition to registered nurses
and clerical personnel.

The petitioner union originally sought to represent a unit consisting of the

boiler operators and three other maintenance employees. The boiler men are
licensed by the State of New Jersey but perform the usual functions of
stationary engineers such as checking gauges and water levels, cleaning the
boiler rooms and performing minor repairs. The Board's regional director found
that there was not a sufficient community of interest between the two employee
groups and certified only the boiler operator unit.

The Board agreed with the regional director on the basis of its "traditional
standards which have long recognized that units of licensed boiler room
employees may constitute a separate appropriate unit," citing New England
Confectionery Co., 108 N.L.R.B. 728 (1954). The majority of the Board did not
discuss the congressional statement which accompanied the 1974 amendments
to the National Labor Relations Act, although it was referred to in a concurring
opinion. St. Vincent's asserts that the Board's recognition of the small, separate
unit was contrary to the expressed intention of Congress and should not be
enforced.

Section 9(b) of the National Labor Relations Act, 29 U.S.C. 159(b) authorizes
the Board to designate an appropriate unit for collective bargaining. The statute
contains few restrictions on the Board's discretion and courts rarely disturb its
determinations, Packard Motor Car Co. v. NLRB, 330 U.S. 485, 67 S.Ct. 789,
91 L.Ed. 1040 (1947), unless they exceed the Board's power. Nevertheless, it
remains for the courts to insure that the exercise of the agency's discretion is
not unreasonable, arbitrary, or in conflict with congressional intent. Memorial
Hospital of Roxborough v. NLRB, 545 F.2d 351 (3d Cir. 1976). Moreover, the
Board must disclose the reasons for a decision which is inconsistent with its
prior rulings. Id. at 357.

In 1947 the Taft-Hartley Act amended 2(2) of the National Labor Relations

Act, 29 U.S.C. 152(2), to exempt nonprofit hospitals from coverage under the
Act. Growing unrest among employees in the health care field caused Congress
to reconsider its position and in 1974 new amendments were enacted which
extended the statute's coverage to a large number of workers in nonprofit
hospitals and similar institutions.1
8

The House and Senate committees considering legislation to remove the

exemption became concerned with a hiatus in patient care which could be
caused by jurisdictional disputes and strikes for recognition. The committee
members recognized that disruption of patient treatment is a far more serious
concern than a break in an industrial plant's production. In addition to the
importance of uninterrupted service, they were aware of the impracticability of
inventorying health care.

With the distinctive problems of the health care field in mind, various proposals
were introduced to eliminate the exemption and also to establish substantial
safeguards against undue disruption. A bill offered by Senator Taft, S. 2292,
93d Cong., 1st Sess. (1973), would have prevented the Board from designating
more than four bargaining units in health care institutions. However, after some
negotiation, it was decided to enact S. 3203, 93d Cong., 2d Sess. (1974), a
compromise between Taft's previous bill and other proposals which did not
contain specific restrictions. Agreeing that patients' welfare might be adversely
affected by disputes over bargaining units, the committees addressed the
problem by means of a statement incorporated in both House and Senate reports
using the form of a directive to the Board:

10 consideration should be given by the Board to preventing proliferation of

"Due
bargaining units in the health care industry. In this connection, the Committee notes
with approval the recent Board decisions in Four Seasons Nursing Center, 208
NLRB No. 50, 85 LRRM 1093 (1974), and Woodland Park Hospital, 205 NLRB
No. 144, 84 LRRM 1075 (1973), as well as the trend toward broader units
enunciated in Extendicare of West Virginia, 203 NLRB No. 170, 83 LRRM 1242
(1973).1
11By our reference to Extendicare, we do not necessarily approve of all of the
1.
holdings of that decision."
12

S.Conf.Rep. No. 988, 93d Cong., 2d Sess., reprinted in (1974) U.S.Code Cong.
& Admin.News pp. 3946, 3950; S.Rept. No. 766, 93d Cong., 2d Sess. 5 (1974);
H.Rept. No. 1051, 93d Cong.2d Sess. 7 (1974). In the decisions cited in the
committee reports the Board included health care employees with related skills
and duties in comprehensive units.2

13

Senator Taft was co-manager of the bill, and in introducing it on the Senate
floor, commented on the broad support from labor organizations and health
care institutions as well as from senators who endorsed the bill and report
language. He expressed concern for the proliferation of bargaining units in
health care institutions particularly in view of their numerous job classifications
and the diversified nature of services furnished. Noting that the Board should
have some flexibility he said:

14cannot stress enough, however, the importance of great caution being exercised
"I
by the Board in reviewing unit cases in this area. Unwarranted unit fragmentation
leading to jurisdictional disputes and work stoppages must be prevented.
15 administrative problems from a practical operation viewpoint and labor- relation
The
viewpoint must be considered by the Board on this issue. Health-care institutions
must not be permitted to go the route of other industries, particularly the
construction trades, in this regard.
16 analyzing the issue of bargaining units, the Board should also consider the issue
In
of the cost of medical care. . . .
17 committee, in recognizing these issues with regard to bargaining unit
The
determination, took a significant step forward in establishing the factor of public
interest to be considered by the Board in unit cases." 120 Cong. Rec. 12944-45
(1974).
18

Congressman Ashbrook, a co-sponsor of the legislation in the House,

discussing the conference report accompanying S. 3203 after legislation had
been approved by the House, again acknowledged that the committee was
concerned with "the issue of undue proliferation of bargaining units and by
language in the committee report has stressed the need for the Board to curtail
such proliferation in health care institutions." 120 Cong.Rec. 22949 (1974).
Senator Williams reiterated the committee's admonition and Congressman
Thompson described the cited prior NLRB decisions as reflecting "the statutory
mandates," though both he and Senator Williams stated that the Board should
exercise its specialized expertise in determining appropriate units.3 120
Cong.Rec. 22575 (1974); 120 Cong.Rec. 22948 (1974). In view of the attention
devoted to it during the committee reports and floor discussion of the
amendments, Congress obviously attached much importance to the unit
proliferation problem.

19

Less than a year after passage of the amendments, in a group of consolidated

bargaining unit cases in the health care field,4 the Board acknowledged the
congressional directive. In Mercy Hospitals of Sacramento, Inc., the Board

commented: "Thus our consideration of all issues concerning the composition

of appropriate bargaining units in the health care industry must necessarily take
place against this background of avoidance of undue proliferation." 217
N.L.R.B. 765, 766 (1975). A unit of all service and maintenance employees
was found to be appropriate in the absence of any request for review of the
regional director's decision. A similar unit was approved in Barnert Memorial
Hospital and in St. Catherine's Hospital of Dominican Sisters. In Newington
Children's Hospital, the service and maintenance employees unit certified
included nurse's aides, housekeeping, dietary, maintenance, engineering,
photography and other employees but excluded licensed practical nurses.5
20

The Board rejected a petition for representation of five stationary engineers in

Shriners Hospitals. Although it recognized that under ordinary circumstances
similar units had been approved in other industries, the Board stated that
ordinary circumstances do not exist in the hospital field. The majority
concluded:

21 is in the context of the peculiar nature of the industry and the congressional
"It
mandate against the proliferation of bargaining units that we have weighed all of the
criteria traditionally considered when making a unit determination and have, on
balance, concluded that it is proper to place special significance on the high degree
of integration of operations performed throughout a health care facility.
22 we to adopt the rationale applied by our dissenting colleagues, we could be
Were
faced with requests to find appropriate dozens of separate units of employees
performing diverse professional, technical, and service and maintenance functions in
an industry which, by its very nature, requires great numbers of employees in a
myriad of classifications all ultimately involved in providing patient care. We shall
not do so, because such an approach can only lead to an undue fragmentation of
bargaining units in the health care industry which would totally frustrate
congressional intent." 217 N.L.R.B. 806, 808 (1975).
23

Subsequently, in Jewish Hospital Association, 223 N.L.R.B. 614 (1976), the

Board rejected a bargaining unit composed only of engineering employees and
approved one composed of all maintenance and service personnel.

24

We consider these statements to be correct expressions of the law properly

recognizing the considerations to be applied by the Board. We are unable to
reconcile the decisions and their rationale with the result reached in the case
sub judice.

25

The Board seemingly was impressed by the facts that the boiler operators at St.

Vincent's were licensed by the state, they spent most of their time in the boiler
room where there was little contact with other hospital personnel and there was
little interchange with other employees. The Board decided to apply traditional
standards which recognize that licensed boilermen may constitute a separate
appropriate unit.
26

The legislative history of the health care amendments, however, makes it quite
clear that Congress directed the Board to apply a standard in this field that was
not traditional. Proliferation of units in industrial settings has not been the
subject of congressional attention but fragmentation in the health care field has
aroused legislative apprehension. The Board therefore should recognize that the
contours of a bargaining unit in other industries do not follow the blueprint
Congress desired in a hospital.

27

The fact that the boiler room employees are licensed by the state is not per se
persuasive of separate treatment. The same kinds of duties apparently were
performed by the engineers in the Jewish Hospital Association, Mercy
Hospital, Barnert Memorial Hospital, and Shriners Hospitals cases also. The
fact that a state may choose to license a particular occupation should not be
controlling in the determination of an appropriate bargaining unit; otherwise,
the development of a uniform national labor policy would be frustrated by
undue reliance on the vagaries of state law.

28

Similarly, the factors of amount of contact between workers, separate

immediate supervision, and the special skills of certain crafts must be put in
balance against the public interest in preventing fragmentation in the health
care field. A mechanical reliance on traditional patterns based on licensing,
supervision, skills and employee joint activity simply does not comply with
congressional intent to treat this unique field in a special manner.

29

In certifying a unit of boiler operators only, the Board did not heed the
congressional admonition nor follow its own cases6 which had observed the
directive. Consequently, its order will not be enforced. The Hospital's petition
to review and set aside the Board's order will be granted. The Board's cross
application for enforcement will be denied.

The Honorable Edwin Steel, United States District Court for the District of
Delaware, sitting by designation

See generally Vernon, Labor Relations in the Health Care Field Under the 1974

Amendments to the National Labor Relations Act: An Overview and Analysis,

70 Nw.L.Rev. 202 (1975)
2

In Four Seasons Nursing Center, the Board had refused to certify a bargaining
unit of three maintenance employees, and in Woodland Park Hospital, a petition
for a separate unit of x-ray technicians was dismissed. The Board approved a
unit of service, maintenance and technical employees in Extendicare of West
Virginia in order to avoid "unwarranted unit fragmentation." 203 N.L.R.B.
1232, 1233 (1973)

We believe that the remarks of Senator Williams and Congressman Thompson,

offered in their explanations of the conference report should not be read to
minimize the deep concern expressed in both committee reports before passage
of the measure, reiterated in the floor debates and included in the conference
report that proliferation of the bargaining units should not be permitted. See
Vernon, Labor Relations in the Health Care Field, supra at 208 n.43

Mercy Hosps. of Sacramento, Inc., 217 N.L.R.B. 765 (1975), Nathan and
Miriam Barnert Memorial Hosp. Ass'n, 217 N.L.R.B. 775 (1975), St.
Catherine's Hosp. of Dominican Sisters, Inc., 217 N.L.R.B. 787 (1975),
Newington Children's Hosp., 217 N.L.R.B. 793 (1975), Duke Univ., 217
N.L.R.B. 799 (1975), Mt. Airy Foundation, 217 N.L.R.B. 802 (1975), Shriners
Hosps. for Crippled Children, 217 N.L.R.B. 806 (1975)

There is some indication in the legislative history that the reservations

expressed about Extendicare of West Virginia were directed to the Board's
decision to exclude licensed practical nurses from a bargaining unit of
technical, service and maintenance employees. See St. Catherine's Hospital,
supra at 788

A review of bargaining unit cases for maintenance and service employees after
the health care amendments demonstrates that the Board's implementation of
congressional policy against fragmentation has not always been consistent.
Compare Shriners Hosps. for Crippled Children, supra (rejecting unit of
stationary engineers separate from service and maintenance employees), and
Jewish Hosp. Ass'n, supra (rejecting unit of engineering department workers,
including powerhouse and maintenance employees, separate from other service
employees, but permitting exclusion of technical employees), and St. Joseph
Hosp., 224 N.L.R.B. 270 (1976) (rejecting unit of maintenance and engineering
department employees, including 10 licensed stationary men, separate from
service and maintenance workers), and Northeastern Hosp., 230 N.L.R.B. No.
162 (July 21, 1977) (rejecting separate maintenance unit), with West Suburban
Hosp., 224 N.L.R.B. 1349 (1976) (rejecting separate unit of maintenance

mechanics but approving maintenance department unit, including boiler

operators and stationary engineers), and Eskaton Am. River Healthcare Center,
225 N.L.R.B. 755 (1976) (approving separate maintenance mechanic unit
separate from maintenance employees), and Mercy Center for Health Care
Servs., 227 N.L.R.B. No. 265, 1976-1977 CCH NLRB Dec. P 17,828
(approving unit of five stationary engineers), and Hebrew Rehabilitation Center
for the Aged, 230 N.L.R.B. No. 35, 1977-1978 CCH NLRB Dec. P 18,275
(approving unit of maintenance employees but excluding service and elevator
operators)